UNITED STATES SENTENCING COMMISSION

Transcription

1 UNITED STATES SENTENCING COMMISSION Staff Discussion Paper Sentencing Options Under the Guidelines Disclaimer: This document was developed by staff for discussion purposes only and does not represent the views of any commissioner. It should not be interpreted as legislative history to any subsequent Commission action. The discussion draft is provided to facilitate public comment on improving and

2 Table of Contents Introduction...1 Statutory Directives...1 How the Guidelines Define and Allocate Sentencing Options...4 Criticisms of the Current Approach...7 How the Use of Sentencing Options has Changed Under the Guidelines...9 Complexity of the Current Guidelines...10 How Sentencing Options are Implemented by the BOP...12 How Judges Use the Currently Available Options...14 Factors that Account for Use or Non-Use of Available Options...15 Availability, Costs, and Benefits of Alternatives Used in the Federal System...17 Literature in Brief: Evaluation of the Effectiveness of Particular Alternatives...19 Past Recommendations and Amendments Concerning Sentencing Options...22 Options for Simplification and Improvement...24 Appendix A

3 Introduction The federal guidelines approach to sentencing options has been a subject of study, debate, and calls for change since the system was created. Academic critics have argued that the guidelines do not encourage the use of intermediate sanctions in appropriate cases, control prison 1 crowding, or achieve other purported goals of sentencing reform. Federal judges have recommended amendment of the guidelines to permit the use of alternatives in a wider variety of 2 cases. The Commission itself has convened several working groups to study this issue, including an advisory panel of criminal justice professionals, scholars, and judges, and two subsequent staff 3 study groups. In 1992, the Commission amended the guidelines to expand the number of offenders for whom options are available. The expansion was less, however, than had been recommended by the Judicial Conference and by the Commission s advisory panel and working group. This paper describes the current guidelines and the statutory directives and structural choices that underlie them. It assesses the guidelines current operation, briefly reviews the available literature evaluating sentencing options, and outlines several broad options for how these guidelines might be simplified and improved. Statutory Directives Prison population. The Sentencing Reform Act (SRA) says relatively little about how the federal guidelines should incorporate sentencing alternatives. The guidelines are to include a determination whether to impose a sentence to probation, a fine, or a term of imprisonment as well as the length of any such term. 28 U.S.C. 994(a)(1)(A). In addition: (g) The Commission, in promulgating guidelines pursuant to subsection (a)(1)... shall take into account the nature and capacity of the penal, correctional, and other facilities and services available, and shall make recommendations concerning any 1 An extended discussion of criticisms of the federal guidelines approach to options is found infra pp See e.g., Judicial Conference of the United States, Recommendations for Amendments to the Sentencing Guidelines, (1990) (recommendations 1-3); Judicial Conference of the United States, Long Range Plan for the Federal Courts, (December, 1995) (recommendation 30b, The United States Sentencing Commission should be encouraged to develop sentencing guidelines that...(1) afford sentencing judges more alternatives to imprisonment. ). 3 An extended discussion of the work of these groups is found infra pp

4 change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated under this chapter. The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission. Some have suggested that the Commission has not focused sufficiently on its mandate to 4 control prison crowding by regulating the flow of offenders into the prison system. Others have noted, however, that these provisions were weakened in the final Act from earlier versions that 5 had required the Commission to assure that the prison capacity not be exceeded. Alternatives encouraged. The SRA also directs that: (j) The Commission shall insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury. This section appears to discourage imprisonment of nonviolent and less serious first-time offenders and to encourage imprisonment of violent offenders who seriously injure their victims. It is left to the Commission, however, to determine what crimes are otherwise serious. The Guidelines Manual explains at page 7 how the Commission made this determination : Under pre-guidelines sentencing practice, courts sentenced to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, anti-trust offenses, insider trading, fraud, and embezzlement, that in the Commission s view are serious. The Commission s solution to this problem has been to write guidelines that classify as serious many 4 Charles J. Ogletree, Jr. The Death of Discretion? Reflections on the Federal Sentencing Guidelines, 101 Harv. L. Rev (1988); Dale G. Parent, What Did the United States Sentencing Commission Miss?, 101 Yale L. J (1992). 5 Kate Stith and Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223 (1993). 2

5 offenses for which probation previously was frequently given and provide for at least a short period of imprisonment in such cases. Other sections of the SRA encourage imprisonment for many federal offenders. The SRA requires a sentence to a substantial term of imprisonment for three-time offenders, managers or supervisors of racketeering activity, offenders who derive a substantial portion of their income from crime, or those who traffic in a substantial quantity of a controlled substance, or commit a violent crime while on bail release. See 28 U.S.C. 994(I)(I)-(5). Other directives to the Commission, subsequent to the Sentencing Reform Act, also require that guideline offense levels be set to ensure imprisonment. Probation is excluded by statute for Class A or B felonies and certain other crimes. See 18 U.S.C. 3561(a). And of course, mandatory minimum penalty statutes require incarceration for certain classes of offenders, regardless of the applicable guidelines. The 25-percent rule. Some commentators have argued that the 25-percent rule affects the Commission s ability to incorporate alternatives into the sentencing guidelines. This may, however, be due to particular features of the current guideline structure, as described more fully in the next section, and may not be inherent in the SRA. The 25-percent rule requires that the maximum term of imprisonment not exceed the minimum by more than 25 percent or six months. The guidelines treat probation as zero months of imprisonment and provide no presumptive sentences without the possibility of imprisonment. Thus, under the present structure, probation 6 cannot be available in any cell with a maximum greater than six months. A different guideline structure that made alternatives the presumptive sentence for some offenders could avoid this limitation. For example, the guidelines could specify that for certain non-violent, non-serious first-time offenders, judges should select an alternative sentence from a schedule of substitute punishments separate from the current sentencing table. Since the presumptive sentence in these cases would not include a term of imprisonment, the 25-percent rule would not come into play. How the Guidelines Define and Allocate Sentencing Options 6 Note that for purposes of satisfying the 25-percent rule, intermediate confinement is currently treated as a form of imprisonment, even though it is technically a condition of probation. For example, Zone B offenders need serve no time in prison (though the maximum term of imprisonment in the cells in this zone is months), but at least four to six months must be served in intermediate confinement. 3

6 Zones of sentencing options. Sentencing options are treated in Chapter Five of the Guidelines Manual. This chapter contains the Sentencing Table (Part A), and separate sections on probation (Part B), imprisonment (Part C), supervised release (Part D and F), and sentencing options (Part F). The rules in these sections create zones in the sentencing table based on the minimum months of imprisonment in each cell. The types of sentencing options available depend on the zone in which the defendant falls. The options available under the guidelines are as follows: Zone A Offenders with sentencing ranges of 0-6 months : straight probation; probation with confinement conditions (i.e., intermittent confinement, community confinement, or home detention); or imprisonment; a fine as the sole sanction. Zone B Offenders with minimum terms of at least one but not more than six months : probation plus a condition that substitutes intermittent confinement, community confinement, or home detention for imprisonment; imprisonment of at least one month plus supervised release with a condition that substitutes community confinement or home detention for imprisonment; or imprisonment. Zone C Offenders with minimum terms of eight, nine, or ten months : imprisonment of at least one-half of the minimum term plus supervised release with a condition that substitutes community confinement or home detention for imprisonment; or imprisonment. Zone D Offenders with minimum terms of 12 months or more : imprisonment Several features of the current guidelines should be noted. First, as used here straight probation refers to probation without any confinement conditions, such as home detention or 4

7 community confinement. Policy statement 5B1.4 lists several standard and special conditions that may be imposed in cases of straight probation (or as part of probation with confinement or supervised release following confinement). These include payment of restitution and fines, performance of community service, and participation in substance abuse treatment. While these conditions are sentence enhancements, with the exception of community confinement and home detention, they are not linked to any of the zones. Second, there are three intermediate confinement conditions provided in the guidelines 7 community confinement, intermittent confinement, and home detention. Technically, these are conditions of probation (if served in lieu of imprisonment), or conditions of supervised release (if served after a period of imprisonment as part of a split sentence). These intermediate sanctions are defined as follows: Community confinementmeans residence in a community treatment center, halfway house, restitution center, mental health facility, alcohol or drug rehabilitation center, or other community facility; and participation in gainful employment, employment search efforts, community service, vocational training, treatment, educational programs, or similar programs. Community confinement may be imposed as a condition of probation or supervised release. ( 5F1.1). Home detention means a program of confinement and supervision that restricts the defendant to his or her place of residence continuously, except for authorized absences, enforced by appropriate means of surveillance (e.g., electronic monitoring). Home detention may be imposed as a condition of probation or supervised release, but only as a 8 substitute for imprisonment. ( 5F1.2). Intermittent confinementmeans custody for intervals of time, such as weekends. It may be ordered as a condition of probation. ( 5B1.3(d)). 7 The concept of intermediate confinement was popularized in NORVAL MORRIS AND MICHAEL TONRY, BETWEEN PRISON AND PROBATION: INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM (1990). 8 Training and Technical Assistance staff report that the phrase but only as a substitute for imprisonment generates some confusion among guideline users. This phrase appears to reflect the statutory directive found in 18 U.S.C. 3563(b)(20) which lists home detention as one of many discretionary conditions of probation except that [it] may be imposed only as an alternative to incarceration. At the time that home detention was added to this list there was concern that it would be used to widen the net, i.e., increase supervision of offenders who would otherwise have received straight probation, rather than replace prison sentences for offenders who would otherwise have been incarcerated. 5

8 Third, note that the guidelines provide for two types of split sentences. Both require that the offender s minimum term of imprisonment be completed with a combination of imprisonment and confinement conditions. Zone B requires that only one month of imprisonment be served. Zone C requires that one-half of the minimum term be served in prison before switching to intermediate confinement. Fourth, although the zones on the sentencing table extend across every Criminal History Category, guideline commentary provides that substitutes for imprisonment are not recommended for most defendants with a criminal history category of III or above. Generally, such defendants have failed to reform despite the use of such alternatives. USSG 5C1.1, comment (n.7). Finally, note that the guidelines at section 5F1.7 state that the court may recommend that a defendant who meets criteria set forth in 18 U.S.C participate in a shock incarceration program ( boot camp ). Shock incarceration program participants are required to adhere to a highly regimented schedule that includes strict discipline, physical training, hard labor, job training and educational programs, and counseling. Section 4046 states that the Bureau of Prisons may place into the program inmates who have received a sentence of more than 12, but not more than 9 30 months and who have consented to placement in the program. Sanction units and substitute punishments a brief history. The earliest drafts of the federal guidelines included a concept of sanction units to measure the total amount of punishment that should be imposed on an offender. (See Preliminary Draft, September 1986). The draft allowed for each offender s total punishment to be satisfied in a variety of ways such as payment of fines, intermediate confinement, or community service, as well as imprisonment so long as the total number of required sanction units were imposed. The preliminary draft asked for comment on the equivalencies among the various sentencing options. A goal of the equivalency approach was to ensure comparable punishment among similar defendants even if that 9 The Bureau of Prisons has issued an operations memorandum ( (5390), November 20, 1990) that outlines eligibility criteria and procedures for the implementation of this program (which the Bureau... has titled intensive confinement program ). Under these procedures, the Bureau will not place a defendant in an intensive confinement program unless the sentencing court has approved, either at the time of sentencing or upon consultation after the Bureau has determined that the defendant is otherwise eligible. In return for the successful completion of the intensive confinement portion of the program, the defendant is eligible to serve the remainder of his term of imprisonment in a graduated release program comprised of community corrections center and home confinement phases. USSG 5F1.7, comment. In addition, the BOP will permit offenders with initial sentences of greater than 30 months to participate once they have only 30 months remaining to serve. 6

9 punishment is imposed in different forms. For example, an unemployed offender without a home might be given a combination of community service and confinement in a half-way house. Another offender deserving similar punishment, but possessing a job and a home, might be given a fine and home detention. The sanction unit concept was not adopted for reasons that included its complexity and mathematical character. However, portions of the concept survived. In today s guidelines, the measure of minimum required punishment is the minimum months of imprisonment in the cell of the sentencing table applicable to a defendant. This minimum defines the zones and the available sentencing options. In addition, guideline 5C1.1(e) contains a Schedule of Substitute Punishments that provides equivalencies between months of imprisonment and the three intermediate confinement conditions. At present, for substitution purposes, a month of each type of confinement is considered equal. (No equivalencies to prison are provided for fines, restitution, community service, or other sanctions.) The rules in Parts B and C of Chapter Five require that when intermediate confinement is an available option, the total length of all sentencing options combined should satisfy the schedule of substitute punishments. Criticisms of the Current Approach Probation as zero imprisonment. Commentators have criticized the guideline s current 10 approach to sentencing options on both structural and policy grounds. As mentioned previously, one criticism concerns the guideline s treatment of probation as zero months of imprisonment. The reasoning is that by using months of imprisonment as the measure of severity, and treating probation as zero months of imprisonment, the guidelines reinforce the misconception that probation is not deemed punishment. This is particularly misleading, say the critics, because significant punishment, such as curtailment of travel, association, and other liberties, payment of fines and restitution, and lengthy hours of community service may be imposed as part of a mere probation sentence. Prison is always an option. No guidelines make an alternative to imprisonment the presumptive sentence. For all federal offenders, no matter how non-dangerous or how minor their crime, the guidelines permit up to six months imprisonment. In FY 1995, judges imposed simple probation in 67 percent of cases in Zone A (see analysis below). But to help prevent 10 See e.g., Jack B. Weinstein, A Trial Judge s First Impression of the Federal Sentencing Guidelines, 52 Albany L. Rev. 1 (1987); Marc Miller and Daniel J. Freed, Developing Intermediate Sanctions, 4 Fed. Sent. Rep. 3 (1991); MICHAEL TONRY, SENTENCING MATTERS (1996) Chapter 3. 7

10 disparity in the in-out decision and to help control prison populations, some commentators had hoped the guidelines would make an alternative the presumed sentence for some cases and require judges to justify departing from this presumption. To some, this approach might seem well-suited for the non-violent and less serious offenders described in 28 U.S.C. 994(j). Limited range of options. Critics have noted that the federal guidelines do not address the full range of alternative punishments that have been used across the country. The Commission s 1994 Alternatives Working Group surveyed the variety of intermediate sanctions available in 46 states and the District of Columbia. In addition to the options that are covered by the guidelines, at least half of the states provide for Intensive Supervision Probation and Day Reporting Centers. A small number of states also use day fines. The guidelines do not provide for these sentencing options. Further, some of the options that are addressed by the guidelines are not integrated into the punishment structure. For example, fines, restitution, and community service are merely addons to a defendant s sentence under the guidelines. They do not count as punishment (i.e., they do not offset any required months of imprisonment under the current schedule of substitute 11 punishments). Application Note 2 to the Commentary at 5C1.1 does state that [i]n some cases, a fine appropriately may be imposed as the sole sanction for offenders in Zone A. Limited availability. Finally, some liberal critics believe that the guidelines are too stingy 12 with alternatives for many persons for whom they may be appropriate. Non-dangerous offenders who can be adequately punished using sanction packages of restitution, fines, community service, and intermediate confinement are mentioned in particular. 11 For criticism of the Commission s approach, see, MORRIS AND TONRY, BETWEEN PRISON AND PROBATION (OXFORD UNIVERSITY PRESS 1990). ("...the Commission has done nothing, it seems to us, to encourage a wider use of the fine as a criminal sanction in this country or to bring the calculation of fines onto a fairer basis. There seems to be no provision in the guidelines for the fine to be imposed alone except for trifling crimes. Considering the range of federal crimes, felonies, misdemeanors, violations, and breaches of regulations, this is an absurd result, and one that the Congress can hardly have intended in adopting the Sentencing Reform Act of 1984.") 12 Terence F. MacCarthy, et al., Individualized Sentences and Alternatives to Imprisonment, 5 FED. SENT. REP. 211 (1993); Weinstein, supra note 13. 8

11 Controlling prison populations is a primary purpose of some state guideline systems, and 13 has been accomplished with some success. The federal prisons, however, were above capacity at the time the guidelines were implemented and have remained so. As of May 20, 1996, the Bureau of Prisons reported an institutionalized population of 93, percent above their rated capacity. The U.S. Sentencing Commission has not attempted to use the guidelines to reduce prison population growth. Commission projections at the time the guidelines were implemented predicted that federal prison population, even under a scenario of low growth in prosecutions, would reach about 92,000 by Most of this increase, however, was attributed to drug offense mandatory minimums and to career offender provisions. The guidelines themselves were projected to contribute three percent to this growth. 14 Conservative commentators, on the other hand, have encouraged growth in prison 15 populations. They attribute recent drops in the crime rate to higher incarceration rates. In 1992, the Department of Justice released The Case for More Incarceration, which pointed to the high incidence of crime among probationers and parolees and encouraged imprisonment in lieu of these alternatives. This report, and others, argued that in many cases the cost of incarceration is less than the cost of the crimes an offender would commit if left in the community. These analyses focus on state probationers and parolees, however, and not on federal probationers, who historically have had a lower recidivism rate than state offenders. (See discussion on page 19.) How the Use of Sentencing Options has Changed Under the Guidelines 13 Thomas B. Marvell, Sentencing Guidelines and Prison Population Growth, 85 Journal of Criminal Law and Criminology 696 (1995). 14 U.S. Sentencing Commission, Supplementary Report on the Initial Sentencing Guidelines and Policy Statements, (June 18, 1987), p John J. DiIulio, Jr., Prisons Are a Bargain, by Any Measure, NEW YORK TIMES, January 16,1996, at A U.S. Department of Justice, Office of Policy Development, The Case for More Incarceration (1992). Edwin W. Zedlewski, Making Confinement Decisions, National Institute of Justice (July 1987). But see Franklin E. Zimring and Gordon Hawkins, The New Mathematics of Imprisonment, 54 CRIME & DELINQUENCY 425 (1988)(discussing anomalies in estimation procedures used by Zedlewski). 9

12 Changes in the percentage of offenders receiving alternatives to imprisonment. Figure 1 (See Appendix A) shows the percentage of offenders receiving prison, probation, and alternative sentences from 1984 to the present. The percentage of offenders sent to prison has risen steadily throughout this period, increasing 11 percent over the past 11 years. The most dramatic change has been in the percentage of offenders receiving simple probation, which has decreased from 33 percent in 1984 to 14 percent in During this same period, the use of alternatives to imprisonment has grown, especially the use of home and community confinement as a supplement to probation. The remaining figures show changes in the portion of drug, violent, and white collar offenders who receive various types of sentences. Both drug and violent offenses show about a ten percent shift from probation to imprisonment at the time the guidelines were implemented. In the case of drug offenses, much of that shift appears to have been lost in subsequent years when the percentage of drug offenders receiving prison returned to a trend line similar to that in preguidelines years. The percentage of violent offenders receiving prison has remained about five to ten percent higher in the guideline era. As described above, the Commission intended for the use of probation to be reduced for white collar offenses and it is here that we see the most dramatic shift. In 1984, more than half of these offenders received simple probation. Last year only a quarter did. Of this shift from straight probation, about half was to sentences involving a term of imprisonment (ten percent increase in prison and five percent increase in split sentences). The remaining half was to intermediate confinement sentences such as home detention. Thus, the shift away from straight probation for white collar offenders was accomplished, but the shift was only partly to the short period of imprisonment contemplated by the Commission. Complexity of the Current Guidelines To assess the degree to which the rules in Chapter Five concerning sentencing options are complex, the working group talked to members of the technical assistance staff and analyzed calls from the hotlines. Examination of Number of Hotline Calls Received.Using annual report data, the working group examined the number of sentencing options hotline calls received compared to the number of other types of hotline calls received. From 1988 to 1995, the Commission received 10

13 18 a total of 17,008 calls. Calls regarding sentencing options/imprisonment totaled 516 (3.0%) over this time period. The percent of these calls ranged from a low of 1.2 percent in 1991 to a high of 6.4 percent in Since 5C1.1 was amended part of the amendment dealt with reformatting for clarity effective November 1, 1992, 3.6 percent (230 out of 6,412) of the 19 hotline calls pertained to sentencing options/imprisonment. Prior to the November 1, 1992, amendment, 2.7 percent (286 out of 10,596) of the hotline calls related to sentencing options/imprisonment. 20 Content Analysis of Hotline Calls.The working group analyzed a sampling of 90 judge/probation officer hotline calls relating to 5C1.1 (Imposition of a Term of Imprisonment). Calls were analyzed for content to see what issues were being raised by probation officers and whether certain guideline sections were posing interpretation problems. Hotline calls were designated as referring to Sentencing Table Zone A, Zone B, Zone C, Zone D, or a general 22 issue. Of the 90 calls in the sample, 29 (32.2%) dealt with Zone C, 13 (14.4%) with Zone B, 9 (10.0%) with Zone A, and 8 (8.9%) with Zone D. Thirty-one questions dealt with issues that applied to more than one zone or that were miscellaneous in nature. The most common hotline question asked (17 times, 18.9%), was: "In the split sentence available in Zone C (i.e., a sentence in which one-half of the minimum term must be prison, while the other half may be satisfied by community confinement or home detention), may one further substitute a sentencing alternative (e.g., home confinement, intermittent confinement, community confinement, work release, or community service) for the half of the minimum term that requires prison? An additional three calls (3.3%) inquired about the split sentence in Zone B and asked whether one may substitute an alternative punishment for the required one month in prison. Four calls (4.4%) asked whether in Zone D the court may substitute a sentencing alternative for and 1995 data include calls from both the judge/probation officer and attorney hotlines. Figures for all other years include only calls to the judge/probation officer hotline. 19 Figures include one extra month, October Figures exclude October This sample included all recorded priority one calls and all priority two calls received after 10/1/92 for which written descriptions were available. 22 The category General Issues included, but were not limited to, hotline calls whose issues applied to more than one zone. 11

14 one-half the minimum term of the sentencing range; another two (2.2%) asked whether the court could substitute time served in community confinement for the entire Zone D sentence. In all, 26 (28.9%) of the hotline calls in the sample indicated some uncertainty about when and to what extent the court could substitute an alternative sentence for prison. No other topic appeared to consistently pose a problem. How Sentencing Options are Implemented by the BOP BOP policy does not correspond to the guidelines sentencing options. Community confinement centers (CCCs) and home confinement are conceived under the guidelines as alternatives to imprisonment. But technically, CCCs and home confinement are sometimes conceived by judges and BOP as a form of imprisonment. Some or all of an offender s term of imprisonment may be served in one of these options. The BOP typically moves appropriate offenders into community and home confinement during the final months of their prison term as part of pre-release preparation. But more importantly, BOP may designate a CCC as the place of service for an offender s entire sentence, even if the sentence is imprisonment. Likewise, judges may recommend that an offender serve the entire prison term in a CCC, which BOP generally honors, for sentences of up to 12 months. The BOP does not necessarily ensure that these placements are consistent with the guidelines. Because the guidelines and BOP policy appear to be inconsistent, we document these policies in some detail below. Judicial recommendations and BOP designation policy. According to BOP policy, 23 judges may recommend that an offender serve his or her prison term entirely in a CCC. The 23 Federal judges may recommend that offenders be committed (designated) to CCCs to serve short-term (ordinarily less than one year) sentences. CCMs [Community Corrections Manager s] will carry out such recommendation if they determine that this designation is appropriate. If space is not available or a CCC would not be an appropriate designation for an offender, an appropriate designation will be made. Under the guidance of the CCRA [Community Corrections Regional Administrator], the CCM will then notify the court with a written response to the sentencing judge as noted in the Program Statement on Judicial Recommendations and U.S. Attorney Reports. BUREAU OF PRISONS, CHANGE NOTICE TO COMMUNITY CORRECTIONS MANUAL, P.S , CN-03, APRIL 11, 1995, CHAPTER 5, PAGE 8. 12

15 24 BOP tries to honor these recommendations. Further, even when judges impose a prison sentence without such a recommendation, the offender may be designated to a CCC. When a 25 prison term is imposed, the offender is bound over to the custody of the Bureau of Prisons. Federal statutes give BOP considerable discretion in deciding where an offender will serve his or 26 her term of imprisonment. The Department of Justice and the Bureau interpret penal or 27 correctional facility to include community corrections centers. The Bureau s policy appears to be that they will designate prisoners to serve their entire sentence in community corrections 28 centers only with the concurrence of the sentencing judge. The effect of these statutes, policies, and practices is that community confinement is technically available as a sentencing option in a broader number of cases than the guidelines recognize. A sentence to imprisonment with a recommendation for placement in a CCC is functionally equivalent to a sentence of probation with a condition of community confinement. The latter is available under the guidelines only for offenders with minimum guideline ranges of up to six months (Zones A and B). The former appears to be available under BOP policy for appropriate offenders with prison terms of up to months, which extends into Zone D. 24 When practical, the Bureau of Prisons will follow the Court s recommendation to place a federal offender in a non-federal facility. When the [CCM] has questions concerning the appropriateness of the recommendation the Regional Designator shall be consulted. If the Court s recommendation is not followed, the Regional Designator shall notify the Court in writing of the reasons, as indicated in Chapter 7. BUREAU OF PRISONS, SECURITY DESIGNATION AND CUSTODY CLASSIFICATION MANUAL, DESIGNATIONS TO NON-FEDERAL FACILITIES, P.S , JUNE 16, 1994, CHAPTER 5, PAGE A judge sentencing a defendant to a non-probationary sentence commits the defendant to the custody of the Bureau of Prisons to be imprisoned for a term of months. FEDERAL JUDICIAL CENTER, BENCH BOOK, (JULY 1993). 26 The Bureau of Prisons shall designate the place of the prisoner s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau... that the Bureau determines to be appropriate and suitable U.S.C. 3621(b). 27 A CCC meets the definition of a penal or correctional facility. BUREAU OF PRISONS PROGRAM STATEMENT ON COMMUNITY CORRECTIONS CENTER (CCC) UTILIZATION AND TRANSFER PROCEDURE, , MARCH 25,1996, PAGE If an offender appears to be a candidate for a CCC and it appears that the Court did not consider placement in a CCC, the CCM shall contact the Court for concurrence of such placement. Ordinarily, contact with the Court will be made through the Probation Officer. BUREAU OF PRISONS, SECURITY DESIGNATION AND CUSTODY CLASSIFICATION MANUAL, DESIGNATIONS TO NON-FEDERAL FACILITIES, P.S , JUNE 16, 1994, CHAPTER 5, PAGE 2. 13

16 To investigate whether this inconsistency in policy is reflected in actual practice, data from the BOP s Sentry system and the Commission monitoring data were combined. On the day the cases were drawn from the Sentry system, 443 offenders were serving prison terms in a CCC. Just over half of these (54%) could be matched with Commission records. (The remainder were recent cases not yet in the Commission database or were unmatchable for other reasons.) Among the matched cases, 186 (82%) were offenders in Zones C or D. These offenders appear likely to serve their entire sentence in a CCC, providing they are not transferred to a prison for a rule infraction. On any given day, several hundred federal offenders are serving sentences in community confinement centers, even though they do not fall in the guideline zones which permit such sentences. How Judges Use the Currently Available Options Percentage of offenders who qualify for alternatives and get them. Table 1 shows the percentage of offenders in each zone of the Sentencing Table who receive various types of sentences. About 13 percent (12.8%) of federal offenders in 1995 fell into Zone A and qualified for simple probation. Of these, 69.5 percent actually received simple probation, 7.8 percent received probation with confinement, one percent received a split sentence, and 21.6 percent were sentenced to prison. About ten percent (10.2%) of offenders fell into Zone B, qualifying them for probation with confinement or a split sentence which includes a minimum of one month of incarceration. Of these, 45 percent received probation with confinement, 8.3 percent received a split sentence, and 35.7 percent were imprisoned. Eleven percent were sentenced to simple probation. (Whether these are improper sentences outside the applicable guideline range but not involving a departure is discussed in the next section.) About seven percent (6.9%) of offenders fell into Zone C, qualifying them for a split sentence that includes at least half of the time in prison. Thirty-two percent (32.3%) of these received such a sentence. Ten percent received probation with confinement (10.2%) or simple probation (10.1%). These numbers show that judges often do not impose alternative sentences although they are available under the guidelines. Judges exercise their discretion by sending to prison some offenders who qualify for simple probation or probation with confinement. Shortly, we discuss what factors indicate when judges choose to recommend an alternative when it is available. The number of offenders receiving improper alternative sentences. Offenders sometimes receive sentences less severe than required by the guidelines. We examined these cases to determine if the sentences were improper (i.e., if they did not involve an express departure 14

17 from the guidelines). Between , no more than 16 cases a year were improper by this definition. In 1995, 29 such cases were found. Four cases in Zone C received simple probation and four received a split sentence with less than half of the guideline minimum in prison. Eight cases in Zone D received a split sentence, ten involved simple probation, and three involved probation with alternatives. Judges generally honor the guidelines by rarely imposing alternatives that are unavailable or granting departures for illegitimate reasons. Factors that Account for Use or Non-Use of Available Options Judges do not use alternative sentences for all offenders who technically qualify for them. What accounts for this? Are alternatives not widely available in practice? Are judges exercising their discretion and adding unwritten exclusionary criteria to the rules already in the guidelines? To answer these questions, we studied (1) the availability of alternative programs and (2) case factors that differentiate offenders who receive an available alternative from those who do not. Program availability. Interviews and data from the Bureau of Prisons suggest that nationally there is an adequate number of community confinement facilities to handle offenders who qualify for community confinement under the guidelines. Not every large city always has beds available (New York or Philadelphia, for example, may fill up), and some remote locations do not have community confinement facilities nearby. But a bed would generally be available somewhere for every qualified offender. The AO s Division of Corrections and Supervision coordinates a nationwide contract to supply electronic monitoring services for district-based home confinement programs. The Division reports that home confinement is available in every district but that electronic monitoring is not available in the Southern District of California and the Central and Southern Districts of Illinois. Mental health, drug, or alcohol treatment facilities are somewhat less available. Districts report that they sometimes lack sufficient funds to provide residential treatment as an alternative to imprisonment for all appropriate offenders. In summary, availability does not appear to be the primary reason judges do not often impose the least restrictive alternative sentence permitted under the guidelines. Case and offender characteristics. To investigate what case and offender characteristics are associated with receiving an alternative sentence, staff conducted a probit analysis of all

18 29 cases falling in Zone A, B, or C. Many factors that may explain judges decisions, such as family responsibilities or the availability of a suitable residence, were not available for this analysis. However, we were able to study the effects of criminal history, offense type, role in the offense, disposition type (trial or plea), age, race, gender, and citizenship of the defendant, employment status, educational achievement, and geographical region. Criminal history had a clear and consistent effect on the likelihood of a defendant receiving an alternative sentence. Offenders in Criminal History Category VI have a 66 percent less chance of receiving an alternative sentence than do those in Category I (holding other factors constant at their average values). Application Note 7 of the guideline commentary to 5C1.1 states that the use of alternatives to incarceration is not recommended for most defendants with a criminal history category of III or above if they have fallen into Zones B or C. Of the 308 defendants in 1995 who met this criteria, 75 (24%) received an alternative sentence (including split sentences). This is a much lower rate than for other offenders in Zones B and C, indicating that judges generally take the commentary into account. Non-citizens are less likely to receive an alternative than are U.S. citizens, reflecting perhaps the impending deportation of the defendant and the absence of a local residence suitable for home confinement. Higher imprisonment rates for non-citizens and for immigration offenders appeared to account for the higher aggregate imprisonment rates for Hispanic defendants. No differences in the use of alternatives were found between Whites, Blacks, and Hispanic defendants after controlling for all other factors in the model. Women, however, were nine percent more likely than men to receive an available alternative sentence. Defendants in the Northeast were nine percent more likely to receive an alternative sentence than those in other regions. Offenders who were viably employed were 21 percent more likely to receive an alternative sentence than unemployed offenders. No differences in the likelihood of receiving an alternative 29 Probit analysis is a technique for studying the relationship between a set of inter-related predictor variables, such as case and offender characteristics, and a dichotomous outcome variable, such as whether or not defendants received alternative sentences. A predictor variable is significant in this probit analysis if it is associated with the outcome, after controlling for the effects of the other predictor variables. For example, if gender is found to be significant, it means that women and men have different probabilities of receiving alternative sentences, after taking into account differences due to the different types of crimes they commit. In addition, only variables that were statistically significant at the.01 level are included, i.e. the probability of the association being due to chance must be 1% or less. The outcome variable in this analysis divided all Zone B and C defendants into two groups: those who received at least the minimum term of imprisonment required for their guideline range, and those who received an alternative sentence such as probation, intermediate confinement, or a split sentence. Of the 7,389 offenders in this analysis, 5,072 received an alternative. 16

19 were found among offenders with different educational levels. Offenders who received the mitigating role adjustment were seven percent more likely to receive an alternative. Those who pleaded guilty were 22 percent more likely to receive an alternative sentence than those who went to trial. Availability, Costs, and Benefits of Alternatives Used in the Federal System Relative restrictiveness of the federal system. As described above, the state survey conducted by the 1994 Commission working group found that the federal system uses a smaller variety of alternatives than do most of the states. In January 1994, the General Accounting Office completed Intermediate Sanctions in the Federal Criminal Justice System. The report reviewed the eligibility requirements for federal intermediate sanctions and concluded that: The U.S. Code, the sentencing guidelines, and Bureau of Prisons regulations (regarding boot camps) limit the 30 availability and use of intermediate sanctions. The GAO report made no recommendation, however, as to whether the use of alternatives should be expanded. Cost of alternatives compared to prison. The GAO report contains perhaps the most sophisticated attempt to estimate the cost of various penal sanctions in the federal system. Attached to this report is Table VI.2 from the GAO report. It shows the average monthly cost for a variety of sanctions. Alternatives are less expensive than imprisonment, although highsupervision alternatives can cost significant amounts. Home confinement with drug treatment costs $900 per month, compared with about $1,500 for minimum security prison. Community confinement costs about $1,149. Intensive probation supervision costs from 50 percent to 85 percent as much as prison. Use of options can also reduce some of the collateral social costs of imprisonment (e.g., foster care for an offender s dependent children). Incapacitative effects of alternatives. Non-prison alternatives cannot guarantee that offenders will not commit new crimes while under supervision. The likelihood of new crimes 31 varies with the recidivism risk of the offender and the intensity of supervision. (Offenders under intensive supervision sometimes show higher violation and recidivism rates than less-supervised 30 General Accounting Office, Sentencing: Intermediate Sanctions in the Federal Criminal Justice System, GAO Briefing Report to the Chairman, Subcommittee on Intellectual Property and Judicial Administration, Committee on the Judiciary, HOUSE OF REPRESENTATIVES (January 1994), at Kathryn D. Morgan, Factors Influencing Probation Outcome: A Review of the Literature, FEDERAL PROBATION, June 1993, page

20 offenders, not because they commit more violations, but because their violations are more often detected.) Offenders under close supervision such as home confinement with electronic monitoring may still engage in crimes such as domestic violence or drug dealing in their home. Offenders not behind bars can easily escape to commit new crimes. However, the supervising officer is generally notified immediately of escapes from electronically-monitored home confinement or CCCs and can take steps to protect the public. Violation rates of probationers and supervised releasees. The violation rates for federal offenders placed on simple probation or home confinement have historically been low, particularly 32 violations for commission of new crimes. In recent years, about 15 percent of persons placed on probation were found to violate the conditions of their probation over the course of their supervision. Most of these were for technical violations, such as a positive drug test. About 2.7 percent of probationers were charged with a new offense or absconded while under supervision. Supervision authorities note that the violation rates for persons under supervised release following a term of imprisonment are generally higher than for persons on probation. In 1995, 36.1 percent of supervised releasees violated the conditions of their supervision; 9.1 percent faced new charges or absconded. Thus, from a crime control perspective, intensive supervision resources perhaps are better spent on the higher-risk supervised releasees than on relatively lowrisk probationers. Many federal offenders who do not currently qualify for alternatives have relatively low risks of recidivism compared to offenders in state systems and to federal offenders on supervised 33 release. Several statistical tools exist to help identify offenders with the lowest risk. The best candidates are offenders with little criminal history, who have a good recent employment record and presently have a job or are attending school, who have no history of substance abuse or are not presently using drugs, and who have a stable living arrangement with a spouse. 32 Data supplied by the Administrative Office of the United States Courts, Federal Corrections and Supervision Division. Figure SE.29 from the 1997 Congressional Submission of the Judiciary. Note that comparisons of violation rates among different forms of supervision are complicated by the different types of offenders and varying amount of time spent under each type of supervision. For example, home confinement generally involves less dangerous offenders and lasts less than six months. Supervised release involves more serious offenders and lasts several years. Raw violation rates give policy makers a sense of the risk of failure for a typical offender who receives an option for an average length of time. Annualized failure rates for similar types of offenders would be needed to address other questions, such as evaluating each type of supervision s success at reducing risk. 33 Miles D. Harer, Recidivism Among Federal Prison Releasees in 1987: A Preliminary Report, FEDERAL BUREAU OF PRISONS, March 11, This study concerns releasees from prison, but most risk prediction research generally identifies similar factors. The Federal Judicial Center is updating the probation Risk Prediction Score. 18

21 Deterrent and rehabilitative effects of alternatives. The evidence for the effectiveness of community-based programs remains mixed, depending in part on whether the programs are 34 adequately supported. At the very least, however, alternatives divert offenders from the criminogenic effects of imprisonment which include contact with more serious offenders, disruption of legal employment, and weakening of family ties. The evidence is clearest for the effectiveness of rehabilitation in two areas employment training and drug treatment. Drug treatment of all varieties has been shown to be somewhat effective in reducing drug use and drug-related crime. However, relapses are common and the length and intensity of treatment and subsequent testing and supervision are crucial factors. There is little evidence that other rehabilitation efforts significantly reduce recidivism. In many cases, it appears that offenders would do as well under simple probation supervision as they do in a 35 rehabilitation program. Literature in Brief: Evaluation of the Effectiveness of Particular Alternatives 36 Community Confinement Centers. The General Accounting Office, the Bureau of Prisons, and academic researchers have evaluated CCCs. These halfway houses include a wide variety of programs. Some resemble minimum-security prisons while others resemble residential mental health, alcohol, or drug treatment centers. The BOP requires halfway house operators to complete individualized plans for residents within the first two weeks of arrival to address all areas of residents needs. The GAO found that between 14 to 67 percent of halfway house residents participate in drug testing and treatment programs. Studies have not found differences between offenders placed on simple probation and 37 those placed in CCCs in terms of recidivism or social adjustment. The GAO found that Joan Petersilia, A Crime Control Rationale for Reinvesting in Community Corrections, SPECTRUM (Summer, 1995). 35 PUBLICATIONS 1992). 36 JAMES M. BYRNE ET AL., SMART SENTENCING: THE EMERGENCE OF INTERMEDIATE SANCTIONS (SAGE General Accounting Office, Prison Alternatives: Crowded Federal Prisons Can Transfer More Inmates to Halfway Houses, GAO Report to the Chairman, Subcommittee on Intellectual Property and Judicial Administration, Committee on the Judiciary, HOUSE OF REPRESENTATIVES (November 1991). 37 James M. Byrne, et al, supra, note